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2004 DIGILAW 70 (CHH)

SONIYA BAI v. BRANCH MANAGER, LIC OF INDIA

2004-04-05

R.S.AWASTHI, V.K.AGRAWAL, VEENA MISRA

body2004
ORDER As per Hon'ble Smt. Veena Misra, Member: 1. This appeal, u/s 15 of the Consumer Protection Act, 1986, has been preferred against the order dated 18-11-2003, passed in complaint No. 393/2002 by the Distt. Consumer Disputes Redressal Forum, Durg (hereinafter called as 'Distt. Forum' for short) whereby the complaint for deficiency in service against the L.I.C. was dismissed by the Distt. Forum. 2. The facts not presently in dispute are that the husband of the complainant late Keshram Sahu was Assistant Teacher and had obtained a life insurance policy bearing No. 38158201 on 18-12-1999 for a sum of Rs. 40,000/- from the respondent/opposite party. The said Keshram Sahu had nominated his wife i.e. the appellant/complainant as his nominee for purposes of the aforesaid policy. It is also not in dispute that the said Keshram Sahu died on 1-8-2001 and further that the claim filed by the nominee of the deceased i.e. the appellant/complainant was repudiated by the insurer on 5-4-2002 on the ground that while filling proposal form the life assured had suppressed material facts regarding his state of health. 3. In consequence of repudiation of claim, the widow of the life assured had filed complaint before the Distt. Forum and contended that on 1-8-01 at about 8 O' clock in the morning her husband went to take bath in the pond but as the mud was slippery, he fell down and slipped into deep water and consequently died. It was further averred that the insurer has wrongly repudiated her claim under the garb of suppression of material facts regarding the state of health of her husband at the time of filling proposal form. The complainant had claimed the insured sum of Rs. 40,000/- together with interest @ 18% from the date of filing of the complaint till full and final realisation and Rs. 1,000/- towards cost of proceedings. Besides filing her own affidavit in support of the complaint, the complainant had also filed affidavit of Smt. Bundeshwari Bat the' Sarpanch' of village Armari Khurd; Khemlal the Panch of the said village and Himanchal Prasad who were taking bath on the other side of the pond and has seen Keshram slipping and falling down into deep water. 4. Besides filing her own affidavit in support of the complaint, the complainant had also filed affidavit of Smt. Bundeshwari Bat the' Sarpanch' of village Armari Khurd; Khemlal the Panch of the said village and Himanchal Prasad who were taking bath on the other side of the pond and has seen Keshram slipping and falling down into deep water. 4. The opposite party insurer had averred in the written version that the deceased had made false statements in claim form and had suppressed the fact that he was suffering from heart disease from the period prior to obtaining insurance policy and had taken leave from his work from 1-3-99 to 26-3-99 and had received treatment at Dhamtari Christian Hospital from 13-99 to 12-3-99. It is also averred that the life assured was diagnosed for Acute Anteroseptal Mayocardial Infarction, Blood Sugar and Mild IVF. But the insured had suppressed all these facts at the time of filling proposal form. Hence the claim was repudiated bona fide and by doing so the company has not committed any deficiency in service. 5. The learned Distt. Forum came to the conclusion that the insured had suppressed the fact of his illness while filling the proposal form and had stated that his health was good, hence repudiation of claim by the L.I.C. was bonafide and did not amount to deficiency in service. Consequently the complaint was dismissed. 6. Aggrieved by the aforesaid order the complainant has preferred this appeal. The learned counsel for the appellant assailed the impugned order and urged that the learned Distt. Forum failed to appreciate the material on record in its proper perspective. The learned counsel for the appellant also argued that the learned District Forum erred in not holding that the death of the life assured was solely due to slipping into deep water due to muddy soil though the complainant had filed affidavits of independent witnesses also. The learned Distt. Forum has placed undue reliance on the documents filed by the insurer, though the same did not relate to the period prior to filling of the proposal form. The learned counsel for the appellant prayed that the appeal may be allowed-and the order of the Distt. Forum be set aside. 7. As against this, the learned counsel for respondent supported the impugned order and submitted that it is a reasoned order and is just and proper. The learned counsel for the appellant prayed that the appeal may be allowed-and the order of the Distt. Forum be set aside. 7. As against this, the learned counsel for respondent supported the impugned order and submitted that it is a reasoned order and is just and proper. There was suppression of material facts by the life assured. The insurer had repudiated the claim after proper application of mind and there was no deficiency in service in repudiating the claim. He further reiterated that there is no need for any interference with the order as passed by the Distt. Forum. 8. The questions to be decided are: whether the repudiation of claim by the insurer on the sole ground of suppression of material facts by the life assured was bona fide? And if so, whether there is any nexus between the facts suppressed by the life assured and the cause of his death? 9. Heard learned counsel for both the parties and perused the record. During arguments learned counsel for the respondent drew our attention to Column 11 of the Proposal Form dated 28-12-1999. The said column relates to Personal History and it was pointed out that all the questions relating to illness and treatment thereof, admission to hospital etc. have been answered in negative. The respondent insurer also obtained record of casual leave, availed of by the life assured from August 1996 onwards, from the Principal, Primary School, Parsada, Gunderdehi, Distt. Durg and filed the same before the Distt. Forum. The insurer has also filed Employer's certificate - 'Prapatra 1', wherein it has been mentioned that the life assured was on leave from 13-99 to 26-3-99 for treatment at Christian Hospital. It is also mentioned in the said certificate that the death certificate is enclosed but it is observed that the insurer has neither filed the same before the District Forum nor before us. The learned counsel for the respondent also drew our attention to the 'Prapatra 2', probably the discharge ticket, filed by the respondent. It appears that the said document relates to Dhamtari Christian Hospital, Dhamtari and name of the patient is Keshram Sahu. Some dates therein are legible but rest of the document is illegible and it is not possible for us to make out as to what was the disease from which the patient suffered or what was the treatment given to him. Some dates therein are legible but rest of the document is illegible and it is not possible for us to make out as to what was the disease from which the patient suffered or what was the treatment given to him. Mainly on the strength of the documents referred hereinabove, the learned counsel for the respondent tried to convince us that there was suppression of material facts and further that the repudiation was bona fide. 10. Even if it is found that there was any suppression the said suppression would amount to material suppression only in case there is a nexus between the facts suppressed and the cause of death. Undoubtedly, the burden to prove that the death of the life assured was due to the disease that existed at the time of filling the proposal form and that too, to the knowledge of the person filling the form, lies heavily on the insurer. We find that the leave record filed by the respondent pertains to Casual leave and not Medical leave. So it can be of no help in proving that the leave was taken because the person suffered from a particular disease. It is mentioned in the Employer's certificate - 'Prapatra 1', that the life assured was on leave from 1-3-99 to 26-3-99 for treatment at Christian Hospital but there is no document to substantiate the same. There is 'Prapatral' but it is illegible, hence is of no use to prove any knowledge of the disease at the time of filling proposal form. No expert opinion has been obtained regarding the documents relating to physical examination and prescription to demonstrate that such medicines as prescribed, are prescribed to Cardiac patients or to patients suffering from Diabetes or any other disease for that matter. 11. The complainant has filed affidavits of independent persons. Two of them had seen Keshram Sahu falling in deep water after slipping on the mud and one of these two was the 'Panch'. Affidavit of the 'Sarpanch' has also been filed. All the three deponents have also stated that Keshram was not suffering from any disease and the sole cause of his death was drowning due to slipping on the mud. We find no reason to disbelieve the statements made by the independent persons on oath. 12. Affidavit of the 'Sarpanch' has also been filed. All the three deponents have also stated that Keshram was not suffering from any disease and the sole cause of his death was drowning due to slipping on the mud. We find no reason to disbelieve the statements made by the independent persons on oath. 12. It is also observed that though it is mentioned in the Employer's Certificate that the Death Certificate is enclosed but the insurer has failed to file the same on record. This leads to an adverse inference being drawn against the insurer that if produced, the document would have gone against them. 13. So, we do not find any material on record to prove that the life assured suffered from any disease at the time of filling the proposal form or that he has made any material suppression. Even if the life assured suffered from cardiac disease and diabetes as alleged by the respondent insurer they have utterly failed to prove any nexus between the death of the life insured and the disease allegedly suppressed. 14. We find that by repudiating the claim of the complainant/appellant, the respondent insurer Life Insurance Corporation has committed deficiency in service. In our opinion the finding of the learned Distt. Forum is erroneous and cannot be sustained, hence the same is set aside. 15. This appeal is allowed. The opposite party/respondent is directed to pay to the complainant/appellant the insured sum of Rs. 40,000/- together with interest @ 10% per annum from the date of complaint till the date of payment. The opposite party/respondent shall bear their own cost of proceedings and shall also pay that of the complainant/appellant and the• same is quantified at Rs. 2,500/- (Rupees two thousand five hundred) only. Appeal Allowed.